October 2010:Vacancy Signs at the Federal Courthouse

The federal judicial confirmation process is at one of its most dysfunctional junctures in American history, and its failure to move nominees has brought about a vacancy crisis in our federal courts. This is not a partisan issue with shades of black and white; the breakdown in the Senate owes itself as much to one party as the other. This is a national issue that speaks to the country’s declining appreciation for its courts, the increasing corrosiveness of our politics, and the rising abuse in the Senate of its procedures.

As the Senate departed Washington on Sept. 30 for a six-week election recess, 103 federal Article III judgeships stood vacant, equaling nearly one out of every eight federal judgeships. The Judicial Conference says that 48 of these vacant judgeships constitute “judicial emergencies,” meaning they have been vacant for at least 18 months and are in districts or circuits dealing with pressing caseloads.

Judicial vacancies are harmful. They prevent the courts from operating at their full capacity in dispensing fair, prompt justice. Vacancies mean larger dockets, longer delay, and greater pressure and expense for lawyers and litigants. As Slate legal columnists Dahlia Lithwick and Carl Tobias recently commented, “Crowded dockets mean longer waits for cases to be heard promptly. This affects thousands of ordinary Americans—plaintiffs and defendants—whose liberty, safety, or job may be at stake and for whom justice may arrive too late, if at all.” Justice Anthony Kennedy said it best, in comments to the Los Angeles Times: “It’s important for the public to understand that the excellence of the federal judiciary is at risk. If judicial excellence is cast upon a sea of congressional indifference, the rule of law is imperiled.”

Under the Constitution, the U.S. Senate s the sole entity charged with the responsibility to “advise and consent” upon the President’s appointment of judges. Despite the Founders’ straightforward wishes, the judicial confirmation process has grown distorted before our very eyes. Over the past 30 years, the Senate has increasingly stonewalled or rejected the President’s judicial nominees, regardless of party. Confirmation rates at 18 months into a presidency have fallen from the high-water mark set in 1982 by President Reagan (93 percent) to 47 percent today (the percentage of President Obama’s nominees who have won Senate confirmation). These numbers—along with opaque, obstructionist “secret holds” on nominations and unprecedented use of the filibuster—reflect a process more like “Advice & Dissent,” the apt title of Sarah Binder and Forrest Maltzman’s recent work on the struggle to shape the federal judiciary.

Finger pointing by the two main U.S. political parties is in overdrive over how the process has devolved and who is at fault. If the confirmation wars expand and increase, regardless of which party takes control of the Senate, the implications for the future are even more troubling. In August, Assistant Attorney General Christopher H. Schroeder warned an audience of Ninth Circuit judges and lawyers that if the current rate of replacing retired, resigned, and deceased judges continues, nearly half of the 875 federal judgeships could be vacant by the end of the decade.

When the Senate left Washington for its election recess, it abandoned its responsibility to provide an up-or-down vote on 16 federal judicial nominees—all of whom were favorably approved by the Senate Judiciary Committee with strong bipartisan support. One nominee, Albert Diaz, who would be the first Hispanic judge on the U.S. Circuit Court of Appeals for the Fourth Circuit, has waited the longest: the Senate Judiciary Committee favorably reported his nomination to the Senate back in January.

The Federal Bar Association’s mission is to promote the effective crafting and administration of justice and jurisprudence in our federal courts. That cannot happen if judgeships remain vacant at current levels. Over the past year, the FBA has called upon Senate leaders of both parties to hasten their work on judicial confirmations to assure that nominees who have been favorably reported out of the Senate Judiciary Committee are assured of a prompt up-or-down vote in the Senate. The association also has encouraged the President to promptly nominate qualified nominees with dispatch. FBA chapters in districts and circuits with pending judicial nominees have contacted their home-state senators to urge a prompt vote on their nominees. This advocacy must continue.

Will the FBA help to make a difference? If the FBA doesn’t raise its voice, who will?